09 Aug 2022

An appeal by nine appellants claiming overtime and housing allowance for operation to combat the cattle lung disease in the Ngami area has been remitted to the High Court for continuation.

The appellants alleged that while on that mission they earned overtime and were not yet paid.

On the second claim, the appellants alleged that in terms of the conditions of service they were entitled to free accommodation or housing allowance at the rate of 15 per cent of their salaries.

They further alleged that for a considerable period while on that mission, they were housed in tents.

Delivering the Court of Appeal (CoA) ruling on Friday, Judge Leatile Dambe said the appellants were appealing a ruling handed down by the High Court on October 28, 2021 relating to a matter where the appellants demanded overtime and housing allowance at 15 per cent of their salaries.

The appellants Tshenolo Kgaswanyane, Kgosietsile Malope, Otlaadisa Aabobe, Tlamelo Ntabeng, Benjamin Barupi, Israel Keitumele, Lindie Sebele, Elly Eshiba and Tshotlo Majagoba were employed by the Botswana Police under Special Support Group (SSG) until they retired at different times.

The court learnt that from time to time, the appellants had to carry out assignments out of their duty stations. Judge Dambe said between April 1996 and July 1997, the appellants went on a mission in the north of the country to participate in the eradication of the Contagious Bovine Pluero Pneumonia (CBPP) a cattle lung disease.

Judge Dambe said sometime in February 2018, each of them received a telephone call from the leadership of SSG, asking them to lodge their respective complaints.

The court learnt that despite getting assurance that their payments would be effected nothing was forthcoming.

 On the second claim relating to accommodation, Judge Dambe said the appellants claimed that being accommodated in tents did not amount to proper decent living facility with basic amenities and for this reason they claim housing allowance…,” said Judge Dambe.

Judge Dambe said the High Court dismissed the appellants case on the basis that there was nothing on record that showed that the respondent had admitted liability except for allegations of receiving phone calls made by the appellants. In addition, Judge Dambe said the High Court held that there was evidence that at the time the appellants lodged their claim the period of prescription had lapsed as they lodged their complaint in 2003, after six years.

 “On that basis the action was dismissed with costs,” said Ms Dambe.

Therefore, the appellants lodged an appeal arising from the High Court decision and their single ground of appeal was that the lower court erred in holding that the claim had prescribed since the court reckoned the prescription period from the time the appellants completed their assignments and not from the time they ceased to be employees of Botswana Police Service.

Judge Dambe said the argument put before court by the appellants was that at face value the cause of action prescribed in 2003, six years after 1997 the time when the operation ceased.

However, the appellants were of the view that such prescription was interrupted in 2018 and began to run anew when each of the appellants were telephoned by the leadership of SSG inviting them to lodge their claims and got assurances that the claims would be paid.

On the other hand, Judge Dambe said the respondent’s argument was that the cause of action had prescribed and as such the 2018 calls did not interrupt the prescription.

“Based on this ground of appeal the issue for determination is whether or not the appellants claims have prescribed and therefore unenforceable and whether or not the High Court erroneously reckoned the prescription period,” said Judge Dambe.

“In my judgement contrary to the conclusion reached by the court below that prescription period had not been interrupted, my view is that on February 18, 2018 the calls inviting the appellants to lodge their claims and assurances given amounted to interruption…,” said Judge Dambe.

She added that allegations made by the appellants about the phone calls of February 18, 2018 were never refuted by the respondent.

“In these circumstances the court below should have determined the question of interruption on the basis of the appellants’ version alone which stood uncontroverted.

Following that approach the court below would have found that the calls were made and assurances given and prescription was interrupted and it began to run anew from that day and it was still running when the action was lodged in 2018. In the final analysis, this appeal must succeed,” said Judge Dambe.  ENDs